John Rizzo’s Decision To Commit A War Crime

The former CIA lawyer claims he could have prevented the agency from torturing people. Why he didn’t:

I couldn’t shake the ultimate nightmare scenario: another attack happens, and Zubaydah gleefully tells his CIA handlers he knew all about it and boasts that we never got him to tell us about it in time. All because at the moment of reckoning, the Agency had shied away from doing what it knew was unavoidable, what was essential, to extract that information from him. And with hundreds and perhaps thousands of Americans again lying dead on the streets or in rubble somewhere, I would know deep down that I was at least in part responsible. In the final analysis, I could not countenance the thought of having to live with that.

Psychologically, you can understand this dynamic. I think it explains a lot about how men like Rumsfeld and Cheney adopted the methods of the Communist Chinese in torturing prisoners under American control. But Rizzo knows better. The very premise is wrong. Both one internal CIA review and the Senate Intelligence report found that the resort to torture helped our intelligence gathering not one bit – which is why, of course, both reports remain unavailable for public perusal and study and, if they do come out, will probably have John Brennan’s massive Sharpie blocking out the actual totalitarian-style horrors the US succumbed to.

Besides, torture in all the gruesome varieties deployed by George W Bush across every single theater of the war is relevant to the top lawyer at the CIA for one reason: to judge if they are legal or not. That’s all Rizzo should have concerned himself with. And they were of course illegal – outlawed most categorically in every single form by Ronald Reagan in the UN Convention Against Torture. The language of that legally binding treaty allows for no nuance, no wiggle room, and certainly no EITs. Some choice quotes:

Torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession … No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.

How does a lawyer defend openly breaking such a law? Why hasn’t he been disbarred? And this “lawyer” was knee deep in overseeing and authorizing the torture of the most brutal kind:

Rizzo traveled with David Addington, the Vice President’s chief of staff; William Haynes, General Counsel of the Department of Defense; and Michael Chertoff, then the head of the Criminal Division of the Department of Justice, to consult with officers at the Guantanamo Bay detention camp in late September 2002. One week later, a CIA lawyer told personnel with the military intelligence interrogation team at Guantanamo that, “if the detainee dies, you’re doing it wrong.”

Again, I do not know why a war criminal like this – a man who destroyed the rule of law when his job was to uphold it – is still treated with anything but horror in this country’s elite.

And, of course, you see his own defense of the indefensible with the usual diversion (one used by David Gergen in a recent debate on AC360 Later): Rizzo says he finds it “ironic” that it “is far less legally risky, and in many quarters considered far more morally justifiable, to stalk and kill a dangerous terrorist than it is to capture and aggressively interrogate one.” When you put it like that, of course he’s right. But if you change “aggressively interrogate” a prisoner with “torture” prisoner, as Orwell would note, it reads differently.

As a brief reminder, here’s what such “aggressive interrogation” meant, under the authority of General Stanley McChrystal in the US torture Camp Nama:

[The prisoner] was stripped naked, put in the mud and sprayed with the hose, with very cold hoses, in February. At night it was very cold. They sprayed the cold hose and he was completely naked in the mud, you know, and everything. [Then] he was taken out of the mud and put next to an air conditioner. It was extremely cold, freezing, and he was put back in the mud and sprayed. This happened all night. Everybody knew about it. People walked in, the sergeant major and so forth, everybody knew what was going on, and I was just one of them, kind of walking back and forth seeing [that] this is how they do things.

But Rizzo, having given the green light to these moral outrages, doesn’t expect torture to return:

I can’t imagine the Agency ever again coming close to running detention facilities or engaging in any sort of even mildly coercive interrogation practices. Given the enduring controversy over the legacy of “waterboarding” and “black sites”—the widespread vitriol generated by the popular 2012 film Zero DarkThirty is but one example of this phenomenon—I can’t see any president ever reopening that can of worms. What’s more, no CIA director in his or her right mind would ever let the organization go down that path again. To do so would be beyond folly. I don’t think even another catastrophic 9/11-like attack will change that.

I would respectfully predict that future presidents will not only continue to be in the business of killing, but will double down on it. And that the CIA will salute the commander in chief and be in the middle of it, without hesitation or resistance.

One small point. In just war theory, it is permissible to kill an enemy combatant in self-defense in wartime. There is no justification in just war theory for capturing a human being and torturing him. It is always and everywhere evil.